July 31, 2009

Susan Mossing, a colleague of mine, and I co-authored an article in this month's issue of The Advocate about some rules adopted by cooperative housing boards that enable them to expel cooperative members without triggering the extensive procedural fairness provisions mandated by the Cooperative Association Act . We also review how these rules circumvent statutory provisions designed to protect cooperative members' rights.

The paper examines the courts' reactions to these expulsions and proposes legal recourse which may be available to cooperative members confronted with this expulsion.

We hope that the article will help cooperative housing members better understand and enforce their rights and that legislative change addressing these problems will soon follow.

July 28, 2009

In the wake of news that another 26 Ontario lawyers are boycotting legal aid work in protest of the dismal compensation for legal aid cases, an editorial in today's Globe and Mail condemns the Ontario government's failure to adequately compensate legal aid defence lawyers, "The Ontario government owes its lawyers recognition for the often gruelling work they do. More importantly, it owes all Ontarians what inequitable funding denies them: the right to a fair trial."

However, the editors have equally harsh words for the lawyers withholding their services in protest, "A boycott...is not the answer. It is unconscionable for these legal practitioners to leave their clients in the lurch. There are now hundreds of would-be clients without recourse to legal advice or representation."

The boycott has been gathering steam in the past months, as various Ontario lawyers' groups have joined the call for better compensation for legal aid cases. While its easy for the Globe and Mail to say "a pox on both your houses", the editors do not explain how exasperated lawyers should deal with this entrenched and long-standing problem, which because of the boycott has received extensive media attention for the first time in years. While the boycott may hurt those charged with criminal offenses in the short-term, the government's long-standing failure to act has put the entire legal aid system in jeopardy.

July 21, 2009

I have written before about applying for indigent status with the courts in order to avoid paying court fees, which for a trial can amount to thousands of dollars. The phrase "indigent status" is a stigmatizing and somewhat misleading name for what is often a simple issue and it is worth noting that the applicant does not in fact need to be indigent or homeless to successfully make an application.

The court applies a two-part test in determining whether to grant indigent status; whether the financial position of the applicant is such that requiring her to pay the fees would deprive her of the necessaries of life or effectively deny her access to the courts and whether there is some merit in the appeal (this test was set out by the B.C. Court of Appeal in Duszynski v. Duszynski).

Now a new decision of the B.C. Court of Appeal, Pavlis v. HSBC Bank Canada, has confirmed that indigent status in the Court of Appeal only permits an appellant to avoid paying court fees. The appellant must still pay the cost of ordering transcripts and preparing an appeal book and appeal record. This is significant because the cost of ordering transcripts is can be enormous. Here is one quote from a transcript company:

$7.50 per page x average of 20 pages per hour of court time = $150 per hour of court time$150 per hour x 6 hours per court day = $900 per court day

If the trial lasted for several days, the cost of transcripts could amount to thousands of dollars. One way of minimizing this cost may be to reach an agreement with the other party about which extracts of the transcript are really necessary for the appeal, and only order those parts.

July 17, 2009

The following is a request for assistance I received from the Salvation Army Pro Bono Progam. I have worked with this organization in the past and would recommend it to lawyers looking for a chance to do some valuable pro bono work. The commitment is only 2 hours a month and there is no obligation to represent the clients beyond giving summary advice at clinics.

The Salvation Army Bro Bono Program program is facing a shortage of lawyers and a significant increase of clients (due to legal aid cuts). Currently, The SA pro bono program needs lawyers in all areas of law. The commitment: 2 hours once a month to provide needy individuals with summary advice only. Here are the details:

· Lawyers usually hold a 2-hour-legal-advice session (“legal clinic”) once a month, and see approximately 4 clients (30 minutes each). Lawyers inform us of the date and time they will be available to hold clinics

· Volunteer lawyers are covered by professional liability insurance coverage in providing legal services to our pro bono clients. This includes full insurance coverage with waived deductibles and surcharges to members in good standing with the Law Society of British Columbia. (We encourage lawyers to contact the Lawyer’s Insurance Fund for details). It is worth mentioning though that we have not had any claims whatsoever since our pro bono program started in 1998

· Clinics may be held in different locations. For example, clinics may be held at:

July 13, 2009

Much of the work of a court happens everyday in civil chambers, where applications are heard on a variety of matters including bankruptcies, foreclosures, family law issues and injunctions to name just a few. Chambers applications used to happen in the judge's office or chambers, but nowadays chambers applications are heard in an ordinary courtroom, full of lawyers waiting their turn to speak to the judge or master.

For people representing themselves in court, very often their first time in a courtroom will be in front of a judge or master in chambers. The experience can be a bit intimidating, especially because the lawyers all seem to know a mysterious protocol and language, and lay people can feel a bit lost. Remember that as a self-represented litigant, you have as much right to be in chambers and be heard as anyone else.

That said, there are some ways to help the judge or master hear you more effectively in British Columbia civil chambers:

1. Arrive early. When you locate your courtroom, go to the front of the courtroom and look at the list of all the different applications which will be heard by the judge or master that day. Find your matter on the list and let the court clerk know that you are present. Give your name and confirm how long you expect your application to take.

2. Depending on the kind of application you are making, your matter may be decided by a master or a judge. The name of the master or the judge should be on the top of the list, or you can ask the clerk. Judges should be addressed as "My Lord" or "My Lady" and masters are called "Your Honour".

3. Take your seat and wait for the court clerk to call your matter. When it is called, go to the front of the room. You and the other lawyer or party (if there is one) will introduce yourselves. The person making the application introduces him or herself first. Each party uses the following format, "My name is John Smith," and then spells their last name. Then say; "I am the applicant (or respondent) in this application".

4. It is very helpful for the judge or master to have a written outline of what it is you are trying to do in your application. Do not make it more than five double-spaced pages. Do include a bit of background, what order you would like the court to make, the reasons you think the order should be made, and any cases or legislation that support making the order. Bring at least four copies; you need to give one to the judge or master, one to the court clerk, one to the other lawyer or party, and one for you to use.

5. If you are the one making the application, prepare a draft order in advance using the court form provided by the registry or available online. Bring your draft order to the registry to have them approve the format of the order. This is called having the order "vetted" by the registry. You might want to do this a day in advance so that if there are major changes to make, you can go home and retype the draft order and get it approved on the morning before the chambers hearing. During your application you can hand up the vetted order to the judge or master. This process saves you from having to type up the order later and have it entered by the registry - a process that can take some time.

6. The court will usually have little or no background information about your application. Start with a 30 second summary of the kind of application you are making and what kind of order you would like the court to make. For example, "This is an application in a family law case. I am seeking an interim child support order for my son and daughter." You can then explain any other relevant details.

7. Never interrupt the other party. This makes you look defensive and the judge or master will just tell you to sit down and wait your turn, so it really doesn't do any good. Each side gets their turn to speak. A useful thing to do while you are waiting for your turn is to take good notes of what the other party is saying so that you can be sure to address all the necessary points when it is your turn.

8. Make sure that you have good authority for your position on the application, besides your opinion that you are right. You don't need many cases (in fact, the judge or master will rarely have time to look at more than a couple), but it is worth finding at least two cases that support your position. There are a number of free online databases where you can search for cases listed on the right-hand side of this blog. Don't forget to bring at least four copies of every case you bring to court (see number 4 above). If you are relying on legislation, make sure you have copies to give to the judge or master as well, since they likely won't have the legislation in the courtroom.

9. Never argue with the judge or master about the terms of the order that they make. This will almost never work, and just aggravates the court. If you disagree with the result of the chambers application, investigate your right of appeal.

10. Lastly, but very importantly, read Rules 51A and 52 of the Supreme Court Rules, which deal with chambers applications. This will help you understand chambers procedures and the kinds of applications which can be heard.

Good luck, and remember that help with civil chambers applications is available through the Pro Bono Civil Duty Counsel project, which provides advice and representation by Vancouver lawyers.

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